STATE OF ALASKA, DEPARTMENT OF HEALTH & SOCIAL SERVICES, OFFICE OF CHILDREN'S SERVICES, Appellant and Cross-Appellee,
MICHELLE P., Appellee, and MORRIS L., Appellee and Cross-Appellant.
from the Superior Court of the State of Alaska, No.
4BE-14-00081 CN Fourth Judicial District, Bethel, Dwayne W.
Fox, Assistant Attorney General, Anchorage, and Jahna
Lindemuth, Attorney General, Juneau, for Appellant and
William T. Montgomery, Assistant Public Advocate, Bethel, and
Richard K. Allen, Public Advocate, Anchorage, for Appellees
appearance by Native Village of Tuluksak.
appearance by Guardian Ad Litem.
Before: Stowers, Chief Justice, Winfree, Maassen, Bolger, and
must have jurisdiction to rule on a case. The superior court
dismissed a Child in Need of Aid (CINA) petition because it
believed it no longer had jurisdiction over the case after
the disposition order granting the Office of Children's
Services (OCS) custody of the child had expired. We hold that
jurisdiction over a CINA case is distinct from the grant of
custody or supervision to OCS in a disposition order and that
it derives from the child's status as a child in need of
aid. We therefore reverse the superior court's order
dismissing the petition and remand for further proceedings.
dismissing the CINA petition, the superior court entered
removal findings based only on a motion filed by OCS. This
was error because the removal order was not supported by
sufficient evidence and did not comply with the requirements
of the Indian Child Welfare Act (ICWA). We therefore
reverse the removal findings and remand for further
proceedings consistent with this opinion.
FACTS AND PROCEEDINGS
Emergency Petition And Temporary Custody Order
P. and Morris L. are the parents of Natalie, who was born in
April 2014. Natalie is an Indian child as defined by
ICWA. On October 31, 2014, OCS filed an
emergency petition to adjudicate Natalie a child in need of
aid and to grant it temporary custody. The petition stated
that OCS had taken emergency custody of Natalie the day
before and alleged that Natalie was a child in need of aid
under AS 47.10.011(2) (incarceration), (6) (physical harm),
(9) (neglect), and (10) (substance abuse).
temporary custody hearing a magistrate judge found probable
cause to believe Natalie faced an imminent risk of physical
damage or harm if returned to Michelle. Morris was
incarcerated at Palmer Correctional Facility at the time. The
magistrate judge further found that Natalie had been
neglected, and that OCS had made reasonable and active
efforts to prevent the breakup of the Indian family. An
adjudication hearing was scheduled for March 2015. The
superior court adopted the magistrate judge's findings in
a December 4 order. Natalie's tribe entered its
appearance after the temporary custody hearing.
The Parents And OCS Stipulate To Adjudication And OCS
hearing in March 2015 Michelle stipulated to adjudication and
disposition (March 2015 stipulation). The stipulation
provided that Natalie was a child in need of aid due to
neglect and that OCS would retain custody until Michelle
completed treatment at a local substance abuse treatment
center. On April 17, her projected completion date, OCS would
return Natalie to Michelle's physical custody but would
have supervision of Natalie for one year. Michelle confirmed
that this was her understanding of the agreement. Morris, who
was still incarcerated, appeared by telephone before a
magistrate judge two days later and agreed to the
stipulation. A permanency hearing was scheduled for October
Natalie's Second Removal From Her Parents'
Home And Modification Of The Disposition From OCS Supervision
To OCS Custody
October 1 hearing OCS notified the court that Natalie had
been successfully returned to Michelle and that it intended
to file a motion to dismiss by the following Monday. The
motion was never filed. Instead, a month later OCS filed a
"Motion for Removal Findings" pursuant to CINA Rule
17(d)(2), stating that Natalie had been removed from her
parents' home on October 3 because Michelle had relapsed
and Morris had been arrested for domestic violence. OCS asked
that the court make findings that the removal from October 3,
2015 onward was warranted because: (1) continued placement in
the home was contrary to Natalie's welfare; (2) placement
with her parents would likely result in serious physical or
emotional damage to Natalie; (3) there was good cause to
deviate from ICWA's foster care placement preferences;
and (4) OCS had made active and reasonable efforts to prevent
the breakup of the Indian family. OCS's motion was
supported by an affidavit from a social worker. No party
responded to OCS's motion.
November 17 the court entered findings authorizing removal as
proposed by OCS (November 2015 removal order). The order
included a finding that there was "clear and convincing
evidence, including the testimony of qualified expert
witnesses, that the custody of the child by the parents [was]
likely to result in serious emotional or physical damage to
February 29 Morris filed a "Motion to Return Child
and/or Request for Hearing on the Return of the Child."
He argued that Natalie must be returned to her parents
because the November 2015 removal order was unlawful and that
the only way for OCS to assume custody of Natalie was by
requesting a temporary custody hearing or removal hearing
under CINA Rule 10. Alternatively, he requested a CINA Rule
19.1(c) review hearing, asserting that his recent release
from incarceration constituted a change in circumstances.
Based on Morris's motion, the court eventually scheduled
a CINA Rule 19.1(c) review hearing for April 22.
Litigation Of Morris's Motion To Dismiss
March 25 OCS filed a petition to extend its custody of
Natalie for one year, pursuant to AS 47.10.080(c)(1)(A). One
day before the scheduled CINA Rule 19.1 (c) review hearing
Morris filed an expedited motion to dismiss. He argued that
the existing disposition order had expired on March 19, 2016,
and OCS's petition to extend custody had not been filed
until March 25. Morris argued that the court no longer had
jurisdiction over Natalie because the petition to extend
custody was untimely.OCS's opposition argued that the
court's November 2015 removal order voided the March 2015
stipulation's expiration date because the November 2015
removal order was actually a temporary custody order of an
indefinite duration. Natalie's tribe joined Morris's
motion to dismiss. In addition to restating or otherwise
joining Morris's arguments, the tribe argued that
OCS's "failure to strictly comply with the
requirements of [CINA Rule] 19.2(a) mean[t] that the
untimely-filed petition for an extension of custody [was]
void and unenforceable." On May 19 the court denied the
motion to dismiss. The court reasoned that, due to
Morris's requested continuances of earlier hearings and
the continued litigation regarding removal, the issue of
custody was tolled.
November 22 the court issued a notice that it was
reconsidering, sua sponte, its order denying Morris's
motion to dismiss, and it invited the parties to file briefs.
On January 3, 2017, the superior court dismissed the case.
The court stated that it was reversing "its order of
June 14, 2016. [OCS] did not file pursuant to the rule a
petition prior to 30 days before its expiration of March 19,
2016." The court further wrote, "[f]or this reason
alone this case is dismissed and the child is ordered to be
released from OCS custody."
Second Emergency Petition And Appeal Of Superior Court's
Order Dismissing The Case
next day OCS filed a new emergency petition to adjudicate
Natalie a child in need of aid,  stating in pertinent part:
On January 3, 2017, the Court entered an order of dismissal
after it sua sponte reconsidered a previously entered order
denying motion to dismiss filed by the father. At the time of
the court's order [Natalie] was placed in licensed foster
care ... in [a village]. The parents reside in [another
village].... [Natalie] faces imminent risk of physical harm
or damage as a result of the Court's order, which
releases a . . . child without any arrangements for an adult
caregiver to provide for her.
emergency hearing on January 5 OCS argued that the
court's order granting Morris's motion to dismiss
created the emergency and that there was no requirement that
"the harm has to have been perpetrated, necessarily,
specifically by the parent." The court disagreed and
dismissed the newly filed emergency petition. The court also
explained that it had initially denied Morris's motion to
dismiss because it believed the extension could be
retroactive, but it later determined after additional
briefing and review of the case law that it could not
retroactively extend a custody order.
court then stated that it was "very concerned for
[Natalie][and] very concerned because from the history ...
the parents aren't doing their share." The court
noted its concern for Natalie's safety and remarked that
"[i]t is a terrible position to put a three-year-old
child in." But the court reasoned that it had no choice
except to grant the motion to dismiss, it said, "I
can't fit it into the law, or I would. I mean, that's
just as simple as that folks, I don't think it's for
the good of the child at all."
appeals the superior court's order of dismissal and the
parents have joined in opposing the appeal. Morris brings a
cross-appeal of the court's November 2015 removal order;
Michelle has not joined his cross-appeal.
STANDARD OF REVIEW
exercise our independent judgment 'when interpreting a
civil rule' or statute, " and interpret statutes
"according to reason, practicality, and common sense,
taking into account the plain meaning and purpose of the law
as well as the intent of the drafters." "We review
questions regarding both subject matter jurisdiction and
personal jurisdiction de novo, as '[j]urisdictional
issues are questions of law subject to [our] independent
judgment.' " When we review an issue de novo it is
our duty "to adopt the rule of law that is most
persuasive in light of precedent, reason, and
the issues raised in the cross-appeal, whether a superior
court's factual findings comply with ICWA requirements is
a question of law, which we review de novo.
"[W]hether substantial evidence supports the court's
conclusion that an Indian child is likely to be seriously
harmed if returned to his parent is a mixed question of fact
and law." The determination that a child will
suffer serious physical or emotional harm if returned to a
parent's custody is a factual finding that we review for
clear error, but whether qualified expert testimony
sufficiently supports this determination is a legal question
that we review de novo. "In CINA cases, we review issues
that were not raised in the trial court for plain
It Was Error To Dismiss The Petition Based Upon A Perceived
Lack of Jurisdiction.
The superior court's jurisdiction over a child in need of
aid is distinct from the custody granted to OCS in a
case concerns subject matter jurisdiction, which is "the
legal authority of a court to hear and decide a particular
type of case." The parents argue that the superior
court was correct in concluding that it lacked jurisdiction,
or authority, to extend the disposition order giving OCS
custody of Natalie because the existing disposition order had
expired prior to OCS filing a petition to extend the order.
OCS argues that, contrary to the superior court's
conclusion in the January 2017 order dismissing the case,
jurisdiction is tied to a child's status as a child in
need of aid, not the existence of a disposition order
granting OCS custody or supervision.
this opportunity to expand on what we first recognized in
Erica A. v. State, Department Of Health & Social
Services, Division of Family & Youth Services: the
superior court's authority in a CINA proceeding is not
dependent upon an existing disposition order. A disposition
order confers authority to OCS over a child who has been
adjudicated a child in need of ...